Colorado House Bill 1176 (UPDATE: signed into law)

The Colorado legislature seems to be moving to pass a law which involves an injured workers right to have a choice and change doctors. The current law says your employer has the first right to pick your treating doctor when you report your injury and need medical treatment. This usually results in being sent to a facility hand picked by your employer/insurer. Trying to change doctors is not easy and my experience has been that such hand picked doctors often will treat and release claimants too early. The proposed law gives claimants a bit more protection. As of Jan.1, 2008 it requires they be given two choices and also lets them switch more easily within the first 90 days. It really is not as good as having a choice of any doctor you wish but it is more then being stuck with one doctor. Still it has been opposed and it is alleged the current system works just fine and few workers request any change of physician. Most of us in this field know perfectly well that changing doctors is seldom easy and if it requires going to a hearing can take many weeks with an uncertain outcome. If we truly care about recovery then this law gives a bit more help to the worker if he feels his employer picked doctor is not helping him. Hopefully this bill will pass and be signed into law by the governor. Here is the current version of the proposed bill:
http://www.leg.state.co.us/Clics/Clics2007A/csl.nsf/fsbillcont3/E3C7D5EE3B482E3E87257251007A4308?Open&file=1176_ren.pdf

A Few Interesting Stats

It appears there were over 10000 hearing applications in 2004 in Colorado. The actual hearings held were around 1500. There were however some 7000 settlements. So the general rule with injuries at work is that most result in settlements. But getting to a settlement or a hearing is often a complicated matter. For example there also were some 8000 motions filed in cases in 2004. Disputes are common in work injury cases and often the injured worker is truly mystified by it all. It seems as if they go from productive worker to problem employee overnight even if they've worked for the same employer for years. Medical, legal and financial worries can all be part of the stress on an injured worker. Employers and insurers suddenly can treat you like an adversary but even if they are trying to be decent about it the stress of needing to recover and move on with your life can be high. Even a minor injury can have long term consequences on your life so you should keep informed and if possible obtain good legal advice with your case. You can call us at 719-596-8900. If you cannot obtain an attorney or need further questions answered contact the Division customer service people at 1-888-390-7936 (toll free).

House Bill 1008 (UPDATE: signed into law)

This proposed legislation tries to offer presumptive coverage for firemen who develop certain types of cancer. Firemen are exposed to many dangerous or toxic substances... and the bill attempts to shift the burden to insurers to fight a workers comp claim. A major difficulty for injured workers and a major defense for insurers is to assert the burden is on the worker to establish his health problem is related to work activities. Thus with a fall where your back is hurt insurers may allege you had a pre-existing back problem so whatever you have is not their problem. Or if you are exposed to toxic chemicals and develop a disease they say it is up to the claimant to prove it is work related. Then they obtain medical opinions it is unrelated to work or of unknown causality. The expense of fighting for benefits can be high (you may need your own expert at your cost). The bill simply cuts this insurance defense off and forces them to carry the burden where it concerns certain cancers with firefighters. Bravo! Ever since this was proposed it appears the insurers have been fighting it by screaming it is unfair. They assert this even though they can pick your treating doctor and then another doctor to defend themselves. This choice they have prevents fairness and often overburdens the claimant. After all how many company selected doctors will say your cancer came from the company work? Anyway here is a link to the dispute:
http://colorado.mediamatters.org/items/200703270002

New Court Decision Today...on Average Weekly Wage

The Colorado Court of Appeals issued a decision today favorable to claimants. The Avalanche case involved calculating average weekly wage. Such a wage can often lead to increased temporary and permanent benefits. Traditionally such a wage is calculated as your pay rate at the time of injury. But this can be reassessed by the Administrative Law Judge. Here the person had a claim with one employer and it was closed out based on her wage at the time of injury. Then later on she sought to reopen the case because her condition had worsened. It was reopened and also the judge calculated her benefits on reopening at a higher wage calculation including adding for health insurance. In effect 5 years after the injury her wage calculations were made higher. In fact they were based on her pay rate with another employer and with the other employers health insurance. However unusual the principle is simple...a judge can determine your average weekly wage in any way that fairly compensates you. The employer asserted this was extremely unfair to them to be saddled with some new calculation years later but what we are really involved with is insurance and with claimants who could be trapped into low calculations despite the passage of many years or other valid considerations. After all we must remember that workers compensation should be keyed around fair compensation for injured workers. Someone not injured who kept working would have pay increases over the years...should the injured worker be stuck at low levels of pay? The court said there are situations where a judge has the discretion to adjust this. I applaud this decision for far too often benefits are limited and never consider the passage of time on pay rates. Yet in a job you are often paid higher wages over time. You can read the decision here:
http://www.cobar.org/opinions/opinion.cfm?OpinionID=6056&CourtID=1

UPDATE (August 2007) : This decision will be reviewed by the Colorado Supreme Court so any final outcome is pending. You can figure a decision will issue next year on this.

Workers Memorial Day April 28th

According to information posted at the AFL-CIO website there were 4.2 million work injuries in 2005 and also 5072 deaths from work injuries. They have designated April 28th as a memorial day for those injured and killed on the job. The link below will take you to the AFL-CIO website with its references to this day. Also at the site there is quite a bit of other information. This of course is a pro-labor website but I've always been concerned that few groups or organizations are out there trying to protect workers, especially injured workers.
http://www.aflcio.org/issues/safety/memorial/

What is a DIME in workers comp?

Often this is an absolute must do in many cases. A DIME is a Division Independent Medical Examination. It is critical in many cases that a claimant seek a DIME. The cost for this is now $675.00 all to be paid to a doctor for a second opinion but it is necessary in many cases. A claimant is usually treated by a doctor picked by the employer. Many though not all of these doctors seem to treat and release people with low ratings for permanent injury and little to no further treatment. In case after case many claimant attorneys see this happen and it really is distressing. If properly set up and planned for a DIME will almost always help a claimant although there are no guarantees. If more treatment is needed it comes out in the examination. For example many claimants have psychological difficulty that comes from the work injury. However the treating doctor misses it or ignores it. This can be addressed in a DIME. Also additional medical care may be needed. Or, if all has been done the DIME may reveal a much higher rating which can result in far greater compensation. There are even cases where the treating doctor released a claimant with no impairment and no restrictions and this was incorrect. Insurers love this and file to close out cases fast so if this happens be aware you are usually on a deadline to seek a DIME. Selecting a DIME doctor is a delicate matter and there are rules to abide by in setting it all up. A DIME is a doctor selected by a special process through the Colorado Division of Workers Compensation to truly evaluate your injury and comment on certain critical matters. It is often invaluable in obtaining more care and better benefits for people to pursue a DIME. However it is not an automatic thing to do so it's not for everybody and if you are indigent there is a process to have the insurer advance the cost.

What is your comp rate?

The maximum temporary compensation rate in Colorado varies from year to year and is usually adjusted around July 1st. So if you are hurt on the job and are wondering what is the rate you will be paid (assuming they are not contesting it or asserting some sort of reduction or loss of benefits) it is two-thirds of your gross or total pay before deductions up to a top rate of $719.74 (for anyone earning $1079.01 or more). So if you make $600 a week then $400 a week (paid biweekly) would be your rate for temporary benefits if you cannot work or are unable to be accomodated with the restrictions imposed by the authorized treating physician. If you are earning $450 a week then $300 a week is the comp rate so it all depends on your gross pay. These benefits are not taxable. Seems simple enough right? Well what if the employer terminated you after your injury and says its your fault. It can take a hearing to see if you are entitled to benefits. Or, if the employer claims you violated a safety rule...if true it can reduce your benefits in half! If you are receiving Social Security disability or retirement benefits this also may reduce your workers comp benefits. However if you were working two jobs that may increase your benefits. Another factor is if you are under 21 years of age...it is quite possible your rate may be treated at the highest rate possible even if you were working part time. Colorado seemed to realize that if a minor is hurt and perhaps has an injury that lasts long term there should be a special way to calculate his benefits. If you are injured on the job your average weekly wage is usually what is used to calculate any compensation but what is your average pay rate? Many times the insurance and employer calculate it one way when it could be higher. It is best to review this carefully as it can result in a difference of several thousand dollars more due a person which if not pursued is a true loss. For example, your employer may turn in your pay as being your base rate and forget to add for overtime. That is wrong but often happens and affects not only your temporary benefits but also your permanent benefits. So verifying your pay rate is an important task. Moreover even if the initial figure is correct it can be adjusted later on for any loss of your health benefits paid or partially paid by your employer. So there is nothing simple about this area...it requires a careful assessment.

Continuing Legal Education...workers comp

I'll be spending one day in the week coming up at a legal seminar on workers compensation. There are a few seminars in this field a year and it seems that I always attend two of them. The two seminars that are well attended by those of us in the field are full day seminars. So much is happening in this field that two days a year are needed to stay on top of it. I enjoy them because I also get to meet others in this field from judges to attorneys to others like those handling the proceedings at the Division. Often the topics are so many that I have to pick between two different topics in any one hour. All this is called Continuing Legal Education and it is also incredibly valuable to be updated on a regular basis. CLE or Continuing Legal Education is a requirement imposed on practicing attorneys. In Colorado you are required to have 45 hours every three years. The workers comp seminars alone exceed this and I have to admit they are enjoyable to attend. I wish some of our legislators would attend too. They would gain some valuable insight into how the system is working and where it is stumbling.

Social Security Info

Sometimes an injured worker or even someone with health problems may believe he or she can no longer work. It is often the case that a person may have a workers comp claim and also a claim for Social Security disability. In fact insurers usually insist that some claimants file for Social Security benefits. Of course the insurer does this because Colorado law usually gives them a reduction in comp benefits if you qualify for Social Security. Nonetheless, if you are injured and will likely not be able to return to any work or even if there was no work injury but your overall health is so bad you cannot work anymore do look into filing at your local Social Security office. If you have an attorney first review this with him before doing so as his advice should be followed. In any event the federal government has a website for looking into all types of Social Security matters. It is at www.ssa.gov but while it is thorough it is also confusing since it includes information on all sorts of benefits such as retirement, widows claims and much more. So if you go there be patient as it does have a great deal of information. By the way it can take a lot of time to be awarded Social Security disability benefits once you apply as most claims are initially denied. You can appeal but many months go by before a hearing date is scheduled. The agency seems to go at a snails pace for many claimants. If you are looking for some basic information on disability I suggest checking at this site and do consult an attorney:
http://www.disabilitysecrets.com/

Is Your Doctor Accredited?

In Colorado an accredited provider is important. For medical doctors if they are accredited in Level 2 they can issue impairment ratings. Such ratings are used to assess the damage sustained by an injured worker. A full accreditation allows the doctor to address physical and psychological damage. A limited accreditation limits the providers assessment. For example many orthopedic doctors are limited not fully accredited. This has nothing to do with their capabilities. Colorado simply requires that you take more courses if you want full accreditation and some doctors just prefer to limit their opinion to what their specialty is so they don't seek full accreditation. In any event if you want to check out a specific doctor you can do so at the website noted below. If the doctor's name is not on the list he may not be accredited though you may ask further through the Division.
http://www.coworkforce.com/dwc/physicians/default.asp

Television advertising by attorneys UGH!

It may be that some advertising is useful but as of today I am turned off by many of the TV ads by attorneys. The fact is workers comp cases are not easy and there are no automatic recoveries with big dollar figures. Moreover in Social Security disability hearings at the local level the statistics suggest that many people lose! The statistics I've been given vary depending on the local Judge but one Judge issues favorable decisions less than half the time. So advertising that leaves you with the impression the lawyer is invincible or a cash king is hogwash. There are two things to address here. First, some of these ads are being run so many times on several stations that it seems like half the ads on TV are attorney ads. I admit that is only my impression but the repetition is excessive! Of course I have a DVR so I skip most of them but I am astounded at the number of lawyer ads on television. Second, this much advertising can result in a huge caseload. So unless you are careful even the best lawyer can be overwhelmed with work. There can be pressure to settle or resolve cases to feed the costs of operating and advertising such a practice. My experience has been to limit the number of cases we handle because each case we do take will almost always involve a great deal of time and energy. Anyone with a work injury or disability has physical, emotional and financial problems plus legal problems added to the mix. This means every case is unique and deserves individualized efforts to get through it with minimal problems. Often a seriously injured case takes over a year to resolve. If so...that is the way it is and should be and rushing to settle is not wise. Excessive advertising expenses and a huge caseload can complicate or even harm this process. Today my main issue with the ads is that they are flooding the airwaves and are unrealistic. So I say UGH! Anything that sounds too good to be true is often not good and not true. By the way some TV ads are professionally done and helpful. I just dislike ads that seem over the line.

Last Friday's Lunch Meeting

Once a month or every so often a few local attorneys meet for lunch and to discuss workers comp and Social Security disability concerns. It is informal but it is useful for all of us to be able to "talk shop" in an area that is as complex as workers compensation and disability. It's also enjoyable and most importantly it helps us all to talk things out. Last Friday a doctor showed up and we had a discussion on pain medicine and therapies. We also discussed other topics such as the Waddell signs. Dr. Waddell (a noted orthopedic surgeon in Great Britain) several years ago presented that certain non-physical matters might affect a person. This seems to have been misinterpreted so that some providers suggest that exaggeration or faking is present if several of the Waddell's signs are present. The fact is Dr. Waddell disavowed that interpretation. In any event we discussed this and I brought with me the latest copy of Dr. Waddell's more recent book. It was a most enjoyable and educational lunch and thanks to the doctor for his attendance!

Update on the Holnam case noted earlier

As I mentioned earlier in Holnam the claimant was unable to seek coverage for an alleged occupational disease based on the legal theory called claim preclusion. The case is a bit complicated but essentially having lost on a traumatic claim the effort was made to allege the condition was caused by occupational activities. The Court said you cannot come back and do this at another hearing. I believe this is not sound reasoning and by way of an update I understand this case is being sent to the Colorado Supreme Court. Of course it is up to the court as to whether it will rule on it but I remain hopeful. I should note further that appeals take a lot of time. It is sad but speedy outcomes are not part of workers compensation when there are appeals. In my view this works to the advantage of the insurers since they can wait it out as compared to claimants.

Vocational Rehabilitation

If you've been injured on the job or even if you simply have health problems which restrict work activities and you're worried about what work or job you can now do check out the Colorado Division of Vocational Rehabilitation. It is unlikely you will receive any vocational rehab through a workers comp insurer. Workers comp used to have a more active vocational rehab effort but that has changed so seldom will you be offered voc rehab by the insurance carrier. My experience has been that they simply pay you a settlement or by Final Admission and you are then on your own. This can be especially difficult when you feel you've lost your trade or occupation. If you are permanently and totally disabled from returning to any work then you may also seek Social Security disability benefits or other disability benefits if available. Moreover any resolution of your workers comp case can mean a substantial recovery if it is properly handled by your attorney. But if you simply cannot continue in your line of work yet believe you can work then consider contacting the Colorado Division linked here: http://www.cdhs.state.co.us/dvr/

Can You Do It Yourself?

Workers comp is so complicated that it has its own rules, its own separate caselaw and statutes, medical guidelines, and even comes under two Colorado agencies (the Division of Workers Compensation and the Office of Administative Courts). Deadlines and forms are also quite complicated and even those with experience must stay on top of them in every claim they handle. Some claimants believe they can try to handle their own claim. Others feel they will be treated fairly especially if they are receiving some benefits. While there are cases where you can receive decent medical care and benefits it is rare that any claim will go smoothly all the way to the end. Certainly the Division has a customer service section which does provide some basic help and it is possible to handle your claim pro se (without an attorney). I suspect many claimants want to avoid using an attorney and think they can come out ahead by saving on the legal fees. All I can say is this....if you can retain an experienced workers comp attorney then do so as he or she will usually maximize your benefits. Too many times the medical care is incomplete. Too many times the amounts due you are very low and you are told it is all you are entitled to receive. Many times an attorney can obtain substantially more benefits for you and far more then the legal contingency fee which is 20% in Colorado. So try to obtain a lawyer to help you with your claim. Do it yourself only as a last resort when a lawyer cannot be found to take your claim. Moreover here is one more tip: whenever possible obtain an attorney early on in your case. The sooner the better given the contingency fee is the same anyway.